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A lesson for the litigious

David van der Woerd Apr 13, 2017

The costs ruling against an unsuccessful appellant only compounded the frustration of their loss at trial with a bigger, more expensive defeat after the appeal. According to Mark Baer of the Huffington Post, aggressive lawyering is counter-productive. He says people “constantly seek out lawyers who are ‘pit bulls’, ‘sharks’, ‘very aggressive’ and other such things. However, there is a difference between being aggressive and being assertive. A lawyer can be assertive without being aggressive and obtain superior results for their clients regardless of the process involved. Contrary to popular belief, aggressive lawyering has consistently been found to be counter-productive… Aggressive lawyers benefit nobody other than the lawyers themselves.”

Consider the case of the Estate of Philip Hughes, 2015 QCCS 1925, and a decision of Mr. Justice Davis of the Superior Court of Quebec rendered on May 5, 2015 which was confirmed on appeal (except for costs) on April 13, 2016 as Agence du revenu du Québec c. Small, 2016 QCCA 632. Philip Hughes (“Hughes”) died unmarried, without any children, and intestate (i.e., without a will) in Quebec on November 14, 1990. No known relatives came forward so the Minister of Revenue eventually took possession of his assets and administered his estate. Twenty three after Hughes’ death, seven of his second cousins instituted proceedings against the Agence du revenu du Québec (“ARQ”) to be declared Hughes’ rightful heirs. The ARQ did not dispute the right of the claimants to get 50% of the Hughes estate; however, they refused to release the other 50% because of their interpretation of the succession rules in play. Ultimately, the judge ordered the ARQ to pay 100% of the property of Hughes under its administration to the seven claimants in equal portions. However, he made no order for costs as he felt the case submitted to him was “unique” and it apparently raised issues not previously raised or adjudicated upon.

If the facts of the case weren’t interesting enough, look at what happened next. The ARQ appealed the judge’s decision to the Quebec Court of Appeal. That burned up almost another year of time and who knows how many thousands of dollars of cost. And what happened in the end? The Quebec Court of Appeal essentially agreed with judgment of the Superior Court. Close the book, right? Not so. The Quebec Court of Appeal then went on to slap the ARQ with a legal costs award in favour of the claimants, not only for the cost of the appeal but also for the costs of the original hearing at the Superior Court, something the Superior Court Judge had rationalized should not occur, even though they were on the wrong end of the stick at the original hearing as well.

So, be careful what you ask for. The boisterous or aggressive are not necessarily good lawyers. Such comment should not necessarily be ascribed to ARC’s legal counsel in this case - they were the government’s lawyers and so one would assume that they were simply protecting the public’s interest. However, the result of their appeal was a ruling which was even worse for them than the first. They escaped the first hearing with only an unsatisfactory result (from their perspective). However, they compounded their problem with their second trip to the bench, which resulted the same unsatisfactory ruling, followed this time by an additional and expensive cost award against them to boot. That is certainly a lesson for the litigious.